Colorado Criminal Juvenile Law – Why Using Facebook Can Be A Very Dangerous Thing To Do

By H. Michael Steinberg Colorado Juvenile Crimes Criminal Defense Lawyer

Colorado Criminal Juvenile Law – Why Using Facebook Can Be A Very Dangerous Thing To Do – When a juvenile is charged with a serious crime – with very good reason, the investigator assigned to that case turns first to Facebook for evidence against that child. Colorado law makes the admission of that evidence – … easy.

In recent cases in Colorado, police officers have been allowed to testify at trial about incriminating evidence recovered from a juvenile’s Facebook site.

Facebook “Evidence” And Colorado Criminal Trials

I advise my clients to NEVER, EVER communicate on the internet – by texting on cell phones – and in certain cases, even verbally on their cell phone. Facebook has become so ubiquitous in today’s world, young people and older persons alike do not realize how easy it is to obtain information published on Facebook and other social media sites.

As unbelievable as it may seem, as of 2016 76% of people between ages 30-49 and 60% of people between 50-64 have created Facebook profiles with various privacy settings. For millions of these people, the privacy settings on their profiles are a complete mystery to them and they do NOT realize just how public their online postings can be.

Most importantly, for the purposes of the prosecution of Colorado criminal charges, online conversations and status updates are being used against them in criminal court and nothing is more devastating to the credibility of a witness than having their own words contradict their sworn testimony.

This is happening now, as I write these words. Social media giants such as Facebook are expanding so rapidly that “warehouses of data” are being created every day. Recent research has found that more than 80 percent of law enforcement officials use social media to collect evidence and use that evidence in their criminal prosecutions.

Why Publishing Information On Facebook May Be “Dangerous”

Consider this – you are under investigation for the commission of a Colorado criminal act. The Detective assigned to your case is searching for evidence of your involvement in a conspiracy of some sort. He or she, during or after the taking of statements or forensic evidence seized from the scene of the crime,.. will go online.

The Detective may earch for the following most common examples of social media “evidence:”

• Descriptions, statements, and announcements of your behavior as it relates to the case.
• Descriptions or pics of your friends, possible drug or alcohol use, or use of drug paraphernalia.
• Statements or images of where you have been as that may related to the defense known as an “alibi.”
• Information in the form of statements, instant messaging, or other kinds of evidence that demonstrates show your alleged criminal actions were premeditated, planned or you were involved in a crime in some way.
• ANY information such as images, statements, or descriptions that might implicate you in more serious crimes or illegal activity by yourself or with others.

What If I Delete My Facebook Page Or The Information On My Site?

Even deleting incriminating information after the fact, such as potentially incriminating posts, may not eliminate the possibility this evidence can be located and used. For example, others may have already printed out the incriminating information. And here’s “the rub,” by intentionally deleting information that could be used as evidence against you, the mere act of deleting information may be interpreted as an inference of guilt AND it might be later proven that you destroyed important evidence – this could lead to being charged with the Federal or Colorado crime of Tampering With Evidence.

This is a very dangerous minefield fraught with unforseen consequences. Always consult a criminal defense lawyer if you are in this position and retain that lawyer if at all possible.

What Follows Are Colorado’s and the Federal Tampering Laws

What is the Federal Tampering with Evidence Law – [18 U.S.C. § 1519]?

18 USC § 1519 – Destruction, alteration, or falsification of records in Federal investigations and bankruptcy

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

What is the Colorado Tampering with Evidence Law – [18-8-610]?

Tampering With Physical Evidence 18-8-610

(1) A person commits tampering with physical evidence if, believing that an official proceeding is pending or about to be instituted and acting without legal right or authority, he:

(a) Destroys, mutilates, conceals, removes, or alters physical evidence with intent to impair its verity or availability in the pending or prospective official proceeding; or

(b) Knowingly makes, presents, or offers any false or altered physical evidence with intent that it be introduced in the pending or prospective official proceeding.

(2) “Physical evidence”, as used in this section, includes any article, object, document, record, or other thing of physical substance.

(3) Tampering with physical evidence is a class 6 felony

How This All Works – Obtaining And Using Facebook Like Evidence In A Criminal Trial

As noted, Colorado law enforcement may obtain “social media evidence” as one of the very first steps in investigating a Colorado criminal act. How do they obtain this evidence?  Obviously that will turn on the degree of privacy associated with the site in question. Public is public!

A suspect or Defendant’s “reasonable expectation of privacy under the Fourth Amendment” in their social media records may depend, in this massive changing area, on the privacy settings for the particular social media account in question. Was this a “private message” or was it a “post” to a user’s Facebook “wall.” These privacy distinctions may make future constitutional scholars subject to the kind of “line drawing” so distasteful to the late US Supreme Court Justice Antonin Scalia.

While your lawyer is trying to find a way around the state of the law, before you turn around, the police may have copied thousands of posts and images you never intended them to have. By posting incriminating information and/or images on your site, because it was fun, you may later have to try to explain this evidence in the courtroom.

Between 2009 and 2011, Google, the provider of social networking sites like YouTube and Google+, has also seen more than a 40 percent increase in subpoenas and search warrants in criminal matters.

Information may be obtained from ISP’s (Internet Service Providers) or the owners of websites with as little work as a general criminal court subpoena. Others require – what actually turns out also to be an easily obtainable, a search warrant. In either case, Facebook, for example, will respond to a government subpoena by lightly turning over information such as:

• the user’s profile,

• wall posts,

• photos uploaded by the user,

• photos in which the user was tagged,

• a comprehensive list of the user’s friends with their Facebook IDs,

• and a table of login and IP data.

With GPS type “location based” services such as Yelp, used more and more commonly these days by MANY major social media providers, precise location information may be obtainable in the ordinary course of business and may be subject to the same subpoenas and search warrants for the other information just referenced.

The Use Of Deception To Obtain Social Media Evidence

This may shock you.. Law enforcement can use deception to bypass the legal need for a search warrant. By creating false online identities or by “flipping” a securing CI (cooperating witness) law enforcement has another way of obtaining this incriminating evidence.

A Concrete Example – Colorado Domestic Violence Cases

In a trial for assault in a Colorado Domestic Violence case, the admission of Facebook messages sent from the Defendant’s account (the chain of evidence is easily established at trial) evidence that the Defendant described striking his girlfriend and was asking for her forgiveness, will be admitted. Later trying to deny on the witness stand that he sent those messages is almost always fruitless.

While the defense may try to argue that “others” may have fraudulently “planted” this evidence, Trial Judges are much more inclined to let this evidence “in” to very receptive juries and with the need of only minimal evidentiary foundations.

Some Concrete Steps To Take Right NOW

What follows are some steps you can right now to avoid the issues referenced in this brief article:

1. Review and change you Facebook privacy settings making certain that only your closest friends and family can see your posts.

2. Try to avoid posting updates or photos about what you are doing or where you are going.

3. NEVER, EVER talk about your case online…period.

4. NEVER, EVER accept “friend requests” from anyone you don’t know.

6. Request that your friends and family members not tag you in posts or photos.

Colorado Criminal Juvenile Law – Why Using Facebook Can Be A Very Dangerous Thing To Do

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Juvenile Law – Why Using Facebook Can Be A Very Dangerous Thing To Do.